Jews Divide Over School For Satmars
America May Appeal — But on Which Side?
By Jeffrey Goldberg
The Forward, January 14, 1994
NEW YORK — As the Clinton administration heatedly debates whether to weigh in on the Supreme Court battle over Kiryas Joel, sharp differences are emerging among Jewish groups, many of which argue that the nation’s highest court should uphold a lower-court ban on the establishment of an all-Chasidic public school for handicapped children.
Jewish organizations ranging from the Orthodox Agudath Israel to the American Jewish Congress have staked wildly polarized positions in the potentially landmark case, and are actively lobbying the solicitor general, Drew Days III. Mr. Days is expected to decide whether the administration will side with the Chasidim or with the New York court that wants to shut the school down — or stay out of the fight entirely. If Mr. Days sides with the Chasidim, he must file his brief by Jan. 21.
Vibrant Element
Attorneys for Kiryas Joel, an impoverished village of 12,000 Satmar Chasidim located 40 miles north of New York City were set to meet with Mr. Days this Thursday, a Justice Department spokesman said. Several of them said they would urge him to file a brief on behalf of the Chasidim. The lawyers told the Forward they would argue that President Clinton’s embrace of religion as a vibrant element of American life should prompt him to oppose discriminating against the Chasidim simply because their religious beliefs prohibit them from sending their children to schools outside their village.
But Jewish groups that have long been at the forefront of the war to keep church and state strictly separated are lobbying Mr. Days either to stay out of the case or to support the position of the New York State Court of Appeals, which ruled against Kiryas Joel. In their decision, judges for the Court of Appeals ruled that the creation of the school ran afoul of the First Amendment’s establishment clause because it yielded “to the demands of a religious community whose separatist tenets create a tension between the needs of its handicapped children and the need to adhere to certain religious practices.”
Swaying the Court
A brief filed by the solicitor general, the executive branch’s lawyer before the Supreme Court, could do much to sway the court, legal experts say. The solicitor general has traditionally enjoyed a special status, and has even been called a 10th Supreme Court judge. A brief from the solicitor general on this case could also greatly illuminate the Clinton administration’s stand on the problems that can arise when the First Amendment’s two often contradictory provisions on religion — the guarantee to allow “free exercise” of religion, and the clause barring the “establishment” of state-sanctioned religion — come into conflict.
Unlike the Bush administration, which actively supported the overturning of precedents that limited government accommodation of religion, the Clinton administration has stated its support for these precedents, including the so-called “Lemon test,” named after the 1971 decision in the Lemon vs. Kurtzman case that set the current guidelines for government involvement in religion. Under the Lemon test, a government action is not unconstitutional if it has a secular purpose, if its primary effect doesn’t advance or inhibit religion and if it doesn’t excessively entangle government in religion. Kiryas Joel’s lawyers argue that the school district, which hires non-Jewish teachers and does not affix mezuzot to the school building’s doorposts, meets the Lemon test.
Deadline for Briefs
“If the administration is serious about what the president has said about religion, then the solicitor general should come in on our side,” said Nathan Lewin, Kiryas Joel’s lawyer and one of the leading religious-rights attorneys in the country. “I’m not asking him to come in and ask that Lemon vs. Kurtzman be overruled. I’m asking him to come in on the question of whether religion, as Yale Law professor Stephen Carter put it, should be trivialized. Here are kids who are disabled. Are they going to be discriminated against because they live in a town made up of Satmar Chasidim?”
Kiryas Joel was incorporated as a separate village 16 years ago, and New York State agreed to establish a public school district to educate the village’s handicapped children in 1989. Kiryas Joel’s lawyers and their allies — including Agudath Israel and the U.S. Catholic Conference — are scheduled to file their briefs in the case on Jan. 21.
Wary of Fight
If Mr. Days does not submit a brief on the 21st, it will be assumed that he will support the Court of Appeals’ decision or that he will sit the case out.
Mr. Carter’s recent book, “The Culture of Disbelief,” was virtually mandatory reading this fall in Mr. Clinton’s White House, press reports stated — the president even displayed a copy of the book on his desk for several weeks. “The Culture of Disbelief” argues that religion should not be trivialized and scorned but should instead be brought into American society’s debate over morals. Mr. Carter has stated in the past that he feels the Kiryas Joel school district is constitutional.
Though the president is a self-proclaimed fan of Mr. Carter’s, it is unclear whether his support for the ideas contained in “The Culture of Disbelief” will translate into support for the Kiryas Joel school district. Though opinions are being gathered from within the Justice Department, which houses the solicitor general’s office, and from without, the administration is said to be wary of entering the Kiryas Joel fight on either side. Mr. Days could not be reached for comment.
Pandora’s Box
“I don’t think they have anything to win by getting involved,” said Marc Stern, a lawyer with the American Jewish Congress, which will be part of a coalition of groups, possibly including the Anti-Defamation League and the American Jewish Committee, filing briefs asking for the New York Court of Appeals’ verdict to be affirmed. Mr. Stern said that a brief from the solicitor general that revisits the Lemon case could open a Pandora’s box for the administration, as religious-rights groups capitalize on a perceived change in administration policy to wage battles on behalf of school prayer and aid for parochial education.
Mr. Stern said his group opposes the Kiryas Joel school district so strenuously because they believe it is a clear violation of the establishment clause. “We’re going to say, in effect, that the central principle of the establishment clause is that politics should not be organized along religious lines. This village was designed to facilitate the exercise of political power along religious lines.”